Blog reader Sue Harrison said: I’ve found myself in a frustrating situation with a publisher regarding the definition of “out-of-print” [and not being able to obtain] a reversion of rights to two of my novels. These novels have earned back their advances but are no longer available to the public. I’m guessing this situation has come about because I signed these contracts before e-book rights were contracted. Do authors still have so much difficulty obtaining a reversion of rights when their books are no longer in print?

An anonymous blog reader said: I am especially interested in how you handle e-books—is it possible for the author not to sell those rights at all, and how do you negotiate when (and if) those rights revert?

Good questions. Rights reversion is an important element in a publisher contract, and this is one of the reasons to have an agent or someone knowledgeable in publishing who can negotiate a contract for you.

“Reversion of rights” simply refers to the point in time at which the publisher no longer owns the rights to your book. When the rights revert to you, the author, you’re free to sell them again or do whatever you want with your book. In the past this wasn’t as important because it was unlikely that another publisher would want to take on an already-published book. Your main option was to self-publish and you’d likely not be able to make enough money to cover your self-pub costs.

But all that’s changed in the digital age. Now, when the rights revert, you can simply and cheaply format your book for Kindle and all the other e-book formats, and keep it for sale forever, perhaps making a few extra bucks a year. So there’s a strong reason to want to get the rights back as soon as the publisher is no longer making you any money.

Of course, this is also why publishers want to hang on to rights as long as possible. Once a book stops being printed in the ink-and-paper format, the publisher can benefit from keeping it “in print” and continuing to sell e-book versions. As long as they have a chance to make money from your book, they may not want to give up the rights.

In Sue’s case above, it sounds like her books are not available in any format, and yet the publisher is hanging on to the rights in case they get around to making them available as e-books and making a few more bucks someday. Apparently there was no clear provision for defining “out of print” and “reversion of rights” in Sue’s contracts which were signed over a decade ago—a common issue for many writers.

Today, we are very clear in our contracts about what defines out-of-print and triggers a reversion of rights. Typically, the publisher wants to keep the rights as long as they’re selling a certain base number of units. For example the contract may state that they retain the rights as long as they’re selling, “100 copies in any print or electronic version within a single royalty period.”

As an agent, I don’t really think 100 units is enough to justify their keeping the rights. I usually try to get it changed to something like 400 units (but publishers are not excited to grant this). Usually there will be a provision that you cannot request a reversion of rights if your advance isn’t earned out. The contract language may state, for example, that if the advance is earned out and the publisher’s sales fall below a threshold for two royalty periods in a row, the author can request a reversion of rights if the publisher doesn’t bring their sales up in the next royalty period. So again, it’s helpful to have an agent who can watch your sales in each royalty period, and make that reversion request at the right time and in the proper manner.

As you can see, with the possibility of a passive income stream coming from e-books they don’t have to promote, print, ship or store, publishers are going to want to hang on to the rights as long as possible. With the difficulty of making money in today’s publishing economy, this is a good thing to help keep publishers in business. As an agent, I want to balance that with what’s best for the author, and try not to let the publisher keep rights past the point where they are reasonably exploiting those rights.

Sue is in a difficult situation—the publisher appears to be holding rights they’re not exploiting, so nobody’s making money, yet Sue doesn’t have the ability to take back her books and make money on them again herself. She may need a knowledgeable lawyer or agent to try and work something out with the publisher—convince them to either offer her books digitally or release the rights. She may not prevail, depending on who her publisher was and what her original contract says.

In answer to the second question from Anonymous—I think you can see from what I’ve written here that electronic rights are extremely important to publishers and there wouldn’t be a chance of withholding those from a contract. I suppose there could be exceptions, but in my experience, asking to withhold e-book rights from a deal would not only be a deal-breaker, it would get me laughed out of the room.

P.S. Blogger seems to be eating comments at an alarming rate today. It took me two tries to get my comments to post. Feel free to email me if you have something to say and can’t get Blogger to take the comment. (Write your comment but copy it before you click “post” in case you need to email it.) You can also DM me on Twitter (@RachelleGardner).

>Interesting! Q: Could authors get around this by writing a revised or different version and releasing it via Kindle? What percentage of the book would need to be changed to constitute a new work? Or would that be breaking terms of the contract? What do you suggest in this case? Just trying to find a few loopholes…

Sharon A. Lavy

>Thanks Rachelle.

Sherrinda

>This is such a timely post! My dad's book was published by Thomas Nelson in 1999, and he now owns all the rights to it. He received an email from a reader who had downloaded his book and loved it and wanted him to put his other books in ebook format. He didn't even know his book was available on Amazon in Kindle format! It's been available since July and no one told him…and he certainly hasn't been getting any profits from it. How can Amazon do that?

Sue Harrison

>Thank you so much, Rachelle, for answering my question about the reversion of rights. I wish I could have read your blog post years ago before I signed those contracts!

Rachelle

>Anon 12:25: I guess I'm wondering why you'd be looking for loopholes. Are you talking about a situation in which you feel the publisher is really treating you unfairly, hanging on to rights long after they're doing anything with them? In this case, I can understand your looking for legal options, but I wouldn't recommend looking for loopholes in a contract you're signing now.

Second, the contract doesn't specify what constitutes a "new work" but it does usually specify that you agree not to publish anything of a similar nature that would compete with this work.

It would probably be better to write a whole new book, but that's just my opinion. I'm always of the mind that it's best to keep moving forward, keep writing more books, don't get stuck in the past.

Rachelle

>Sherrinda: It may not be Thomas Nelson or Amazon that's responsible, but a third party. I'd recommend going to the effort of doing the research with Amazon, finding out who's selling the book, and trying to get them to stop if they're not authorized to do so. Good luck.

Elle Strauss

>Interesting and useful information–thanks, Rachelle!

Anonymous

>Hi Rachelle: Anon here. Thanks for your reply. I meant works that are old or out-of-print, like your author mentioned. If an author has changed publishers or editors or whatever, can s/he revise it enough so it can be considered "new" and not break the contract? I know this works in the magazine biz, not sure about book publishing.

I know of authors who couldn't get their rights back if a publisher closed down or even died. What do you suggest? Just wondering how authors can salvage a bad situation. Thanks for your help!

Kristin Laughtin

>So suppose Ms. Harrison's publisher decided to produce e-books of her novels. Is it correct to assume a new royalty rate would have to be negotiated, or would the publisher automatically try to pay her whatever rate she was earning when her books were in print?

areteus

>With reference to the Amazon sales… Can't recall where I read this but I did see somewhere that Amazon will automatically list any book registered with an ISBN as a matter of course and order copies through the publisher if ordered. Not sure how this may apply to Kindle, though. Presumably for Kindle someone has to actually convert the book into the right format for Kindle release?

There is also the concept of Print on Demand these days which may well make the idea of a 'print run' obsolete. In the old days, it was more economical to order a large print run and pulp the unsolds and still make a profit then reprint if there were more sales. However, now you can just as easily print a new copy everytime someone wants one and so never go out of print…

Joanne Bischof

>Thanks, Rachelle. Helpful and insightful as always and good food for thought.

Dave Cullen

>Interesting stuff.

I always wonder when my books will go out of print, even the ones I have not written yet. Seriously.

RG

But how to actually go about asking for a reversion of rights in the case of a major publisher, for a book that’s decades old and long out of print? They ignore mailed requests.

http://gapyearsthebook.blogspot.com Jo Carroll

Thanks for this – it’s very clear. We don’t have to like everything about this – but it does help to know it.

Rochelle

Hi Rachelle,

I am trying to help a friend. She had two novels published my Miramax–one in 1999, one in 2001. By 2004, they were both out of print, and she sent the publisher a request for reversion of rights. She sent it by certified mail, and has the receipt. That letter was ignored; she never heard anything. She got busy, writing other books, and forgot about the other two. Under the terms of the contract she signed, the publisher had 6 months to respond to her request for reversion. If the publisher notifies her that it would reissue, then it has six months to do so. If it had not reissued the books by 9 months from the date of the request for reversion, then all rights revert to her automatically.

Long background, but here’s my question: Can she go ahead and assume that all of her rights reverted back to her back in 2004 or 2005, since the publisher never responded to her request for reversion of rights? Should she then self-publish those novels, for example, to Kindle? That way, they would be available to people who are buying her more recent novels.

Thanks.

James Conroyd Martin

Sometimes going to the top person will shake things up. When the imprint for a major publisher said it could take a year and then the answer might be “No,” I took it to the president of the company (in a nice, well thought out way) and had the reversion within days.
James Conroyd Martin

My publisher has reverted all rights to me and will be sending me a CD with digital files. There is a stipulation in the reversion contract that says I must cite the publisher if my book is ever reprinted. Where can I find the appropriate wording for this?

Reggie

Hi Rachelle, thank you for the interesting blog post. I have a question: I finally got the rights reverted from my publisher, but it specifically states that they’re giving me back the rights that I originally granted to them. When I submitted the book, it had a working title. They came up with the final title. They also created the cover art. Does that mean that I don’t “own” the title and cover art and must re-publish with new art and a new name? If I republish using “their” name and art, will they be able to make a claim for any sales I might have?

deonandan

Hi Rachelle. So glad I found this blog post. Hope you don’t mind that I have a question. I recently had the rights to one of my books revert back to me. As you noted in your post, I intend to self-publish the title electronically. My question has to do with the ISBN number and any requirements for acknowledging the book’s previous publishing history. Can I retain the existing ISBN number, or must I assign a new one through the new imprint? And how best to acknowledge the book’s publishing history? Is a note on the inside cover sufficient? If you can answer my questions, thanks in advance. If you can’t, thanks anyway for a great blog post.

Curious Author

Just curious, if a publisher sends reversion of rights letter back through email is that still appropriate and holding?

marcygoldman

Thanks for this great piece. Can an author, if the publisher refuses to release Erights they’re not using, produce a similar work with a different ISBN?

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